In January this year, Norton Rose Full Bright (Norton Rose), formerly Deneyz Reitz (an apartheid law firm) – recently joined by AfriForum, Solidarity (white minority NGOs), Bowmans, Werkmans and Webber Wentzel – announced their decision to legally challenge the Legal Sector Code (The LSC), that was gazetted by the Minister of Trade and Industry, and Competition.

The LSC is the BBBEE measurement framework for the legal profession.

In their challenge, Norton Rose asks the court to find that the LSC is invalid, irrational, and unlawful, the decision by the Minister to gazette the Sector Code.

Norton Rose goes on to allege that if the LSC is not set aside, they (only they and 5 other large firms) will suffer prejudice as their BBBEE level will drop significantly from level 1 to 6. This means that they will lose a lot of government legal work as a better BBBEE level rating is required for government work.

There are just over 10,000 law firms in SA. Most of these firms are in support of the LSC.

The small and medium law firms (both black and white-owned) and entities – especially those whose annual revenue is less than R5 million – are not expected to comply with the LSC since it mainly benefits them.

The legal challenge of the LSC is not entirely unexpected, especially since it seeks to disrupt the status quo, however the court application by Norton Rose actually confirms the long held suspicion that the opponents of economic transformation in South Africa, and everywhere in the world, will never surrender without a fight.

Notwithstanding this, and despite the claim by these large firms that they are “committed to transformation” – which we know they are not – there is still a lot that they do not tell South Africa.

Just to rub it in, they continue to use black faces and professionals as proxies in opposition to transformation. The senior counsel on brief in this application, for example, are mainly black males.

In March this year, for instance, coming out of a parliamentary question addressed to the Minister of Justice and Constitutional Development, it became clear that the so-called large law firms combined, earned more than R100 million in legal fees over the past 5 years from the state and its departments. This excludes the spend on black law firms and Advocates. The figures could be higher. There is still no account or indication of how much of this landed in black hands.

Favouring the status quo

What these Law Firms also do not tell SA is that, in essence, they are in favour of a measurement framework that effectively retains the current status quo. This not only promotes white-owned firms in fostering their receipt of more legal work, but also perpetually discriminates and increases the skewed briefing patterns in the legal sector.

The LSC is the product of an inclusive, consultative, and transparent process that was aimed at giving real effect to constitutional transformation. Over seven nationwide consultations with Industry stakeholders were held.

In reality, the opposition by the Big Firms of the LSC is based primarily on the fact that, for the first time in the history of legal profession, the LSC introduces the measurement of sector-specific contributions, which are directed towards growing the sector and providing opportunities for black candidate and practising legal professionals, as compared to indirect financial contributions that are not relevant and designed to grow the sector.

The so-called Big Firms, which are by self-design, modelled like corporates, used to score easy points in terms of the BBBEE Generic Scorecard.

That is why these firms still believe that the targets contained in the LSC are not achievable. Their drop in BBBEE level contributions will be inevitable where the new measurement framework (the LSC) introduces new targets and timelines.

They also would not say that the LSC is, in fact, supported by the significant majority of the legal fraternity, who have, through various formations, joined in the defence of the LSC.

But more importantly, the Big Firms will also not tell SA that:

• The LSC recognizes the existence of the unique features existing between Attorneys (Law Firms) and Advocates. It introduces a requirement for Advocates that will be measured in terms of BBBEE.
• The LSC is designed to promote the briefing of black and black women Advocates, particularly in new areas of the law. This is very crucial for transformation.
• It further creates, for instance, a Sector Transformation Fund that will support, amongst other things, struggling new entrants to the profession – who are usually forced to close shop as a result of debts and lack of financial support. The fund will, more importantly, finance black students from un-affording backgrounds through bursaries for graduates, fees for law school, pupilage and legal practice start-up costs.
• It compels the State Attorney’s Offices, public entities and State Owned Entities (the SOEs) to use the LSC as an instrument to source legal services. In terms of this procurement element, even the white-owned law firms, and advocates who are white, are eligible to receive briefs, especially as long as they commit to involving and empowering small black law firms (who are Exempted Legal Entities) and black junior advocates.
• The LSC lists at least 32 specialised and complex areas of the law, which have for years been an exclusive domain of white and established law firms. The LSC now makes it compulsory for all affected firms, including the so-called big firms, to train and expose black practitioners in these areas. These include – amongst others – Forensics, Aviation, ocean, corporate, mining, construction and engineering law – amongst other things. The so-called big firms would not say this.
• Even the black employees working in these Big Law Firms, describe stories of discriminatory and untenable working conditions.

However, the real reasons why the so-called Big Firms are in fact, opposed to the LSC is that, for the first time, it introduces a framework to empower black practitioners and level the playing field in the profession.

The status quo, in every industry, does not give up without a fight. It’s our responsibility to disrupt it.

* With over 20 years of Post Admission Experience, Thabo Masombuka is a senior construction and engineering legal practitioner who was involved in the drafting of the LSC. A former CEO of the Construction Charter Council.

** The views expressed do not necessarily reflect the views of IOL or Independent Media.

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